02255 (2d Dep’t 4/2/14), decided some 17 years later, here we go again.
In this complicated fact pattern, plaintiff trips and falls over a sidewalk flagstone abutting defendant’s premises. Defendant claims, on this motion for summary judgment, that the defect is trivial and Supreme Court agrees. On appeal, it’s out with the magnifying glasses as this “Trial by Kodak” begins.
The Second Department, in keeping with Trincere, examines “’the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury.’” Of course, there’s no guidance, since Trincere provides that there is no “’minimal dimension test’ or ‘per se’ rule” requiring a certain height of depth to be actionable.
In place and instead of a jury trial, we are directed to look at plaintiff’s “poor quality black and white photograph” in the record. It is of “such poor quality that it is impossible to determine whether the alleged defect is trivial as a matter of law.” Better yet, defendant’s own photos were never acknowledged by plaintiff as being representative of the condition where he fell.
What’s an appellate court to do? Reverse and tell the parties to try their case to a jury instead. You mean, to some sort of “trier of fact?” Brilliant! Wish we’d thought of that.